The Court of Appeal (Burnett LJ, Carr and Lindblom JJ) has given a clear warning of the consequences which can follow when orders which it makes are not followed and that if a defendant is asserting a lack of means then the correct information needs to be put before the Court. The sanction imposed was a recovery of defence costs order.
Mrs Shurn was a ward sister at the Royal Gwent Hospital who pleaded guilty to 5 counts of fraud. Anthony Vines was instructed for the prosecution. Mrs Shurn had claimed for shifts she had not worked, had not dealt appropriately with a donation and had claimed for a course she had not attended. The loss involved was some £17,000. Prior to sentence, notice was given that a costs order would be sought of some £8,500 for investigation costs and £2,100 for legal costs.
During mitigation, general assertions of impecuniosity were made but no statement of means was put before the Court. Mrs Shurn received 12 months' immediate imprisonment and a costs order for £2,100 was made.
Mrs Shurn appealed the costs order relying upon her prison sentence and her lack of means. The Single Judge granted permission requiring her to put before the Court her means as at the time of sentence. She failed to do this but her statement of means for Legal Aid for the appeal was put before the Court. This revealed amongst other things significant equity in the family home.
Burnett LJ giving the judgment of the Court was critical of the Appellant for not having made her position clear either at first instance or again on appeal, particularly where notice of the costs application had been given and where there had been non-compliance with the order of the Single Judge.
The Court reiterated the point that when a defendant's means were not clear it was incumbent on her to place such information before the court (R v Northallerton Magistrates Court ex parte Dove  1 Cr App R (S) 136). If she did not provide such information, the court would presume that she had the means to pay such an order.
The Court therefore dismissed the appeal and, being obliged to consider whether a recovery of defence costs order should be made under reg 5 of the Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 (SI 2013/511), required the Appellant to pay the defence costs of the appeal which had been assessed at £1,018.
The decision can encourage those prosecuting to point to the lack of disclosure where impecuniosity is being asserted.
R v Shurn  EWCA Crim